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(LEGAL) Giving Candidates Reasonable Access

9-14-2012

<b>(by David Oxenford)</b)

In recent days, on our blog, we’ve been writing about political broadcasting topics in anticipation of the November election. We provided a refresher on the basics of lowest unit charges on Monday, and equal opportunities on Wednesday. Today, we’ll look at reasonable access – how much time must stations sell to political candidates (or give to them if they would rather meet their obligations through free time, which few stations are willing to do).

Reasonable access requires broadcasters to make reasonable amounts of time available to candidates for Federal office – in all classes and dayparts on all commercial broadcast stations (noncommercial stations were exempted by Congress about a decade ago when candidates started to demand free time on these stations). With the expected onslaught of political advertising coming up in most battleground states, stations fearful of having to devote all of their commercial time to election advertising wonder just how much time is reasonable?

The FCC leaves the determination as to what is “reasonable” to the reasonable discretion of the station, as long as access is provided to all classes and dayparts on the station. The discretion, though, is to be exercised in coordination with the political candidates themselves. For Federal candidates, stations should not put up-front limits (e.g. in a political rate card or on a political disclosure statement) as to how many spots they will sell to any Federal candidate in any specified period of time. Instead, stations are supposed to engage in a give and take with the candidate, accessing the candidate’s needs and desires and weighing them against the needs of the station to provide advertising to other clients. After hearing the needs of the candidates, it is up to the station to reach a determination as to what is reasonable. If stations give candidates at least some access to all classes and dayparts on their stations, even if it is not as much as the candidate wants, stations have traditionally been given the benefit of the doubt by the FCC.

In assessing what is reasonable, stations can look at a number of factors. The factors include the number of other races in a station’s coverage area, the amount of time that the candidate has already purchased, the timing of the request, and the demands for time by other non-political advertisers. Thus, stations in a rural area that covers a single Congressional district may have obligations to provide more time to any single candidate than stations in a major metropolitan area, where there may be multiple Federal Congressional races each seeking access. The amount of time that needs to be provided to any single candidate may also be less very close to the election, when the demand from other candidates is likely to be the greatest. Stations do not need to provide wall-to-wall political advertising.

The only daypart where an exception is made is news - where the FCC has said that stations do not need to provide candidates access to their newscasts. They can provide that access, or they can provide access only to certain portions of the newscasts. This exception was provided as the FCC feared that some political ads could be confused with news content. However, full-time news stations cannot use this exception to totally exempt themselves from reasonable access - as all broadcast stations have a statutory obligation to provide some access. Nor can a company that owns a cluster of radio stations take Federal political ads on only certain stations. While a station owner might think that a candidate may not really want to buy a particular music station, if the candidate demands access to that station, reasonable access must be provided even if the owner believes that the ads would be more appropriate on their news-talk station.

It is a common misconception that candidates can come in and demand the exact time that they want for their ads – getting placement on specific programs on specific days and even at specific times. In fact, stations have much discretion to direct candidate’s ads to times comparable to that requested by the candidates, and to manage access to particular programs on particular days, as long as the station, during the course of the election, accords some access to all classes and dayparts. By offering the candidate a spot in next week’s episode of a popular program if this week’s episode is sold out, or by placing the ad in a program that offers a similar audience, the obligation to the candidate can be met.

Like many other areas in political broadcasting, this is not an easy dance, and the devil is in the details, but with practice and diligence, a station can manage the process. One thing that makes the process somewhat easier is that state and local candidates do not have a right of reasonable access. As we have written before, while stations can afford time to state and local candidates (and, if they do, all other political rules apply including lowest unit rates and equal opportunities), stations do not have to provide such access. Stations can refuse to sell time to candidates in particular races (as long as they treat all candidates in the same race in the same way), while selling time to other state and local races. Stations can also limit state and local candidates to specific days or dayparts, again with the caveat that all candidates for the same race are treated in the same way. As there is no right of access for state and local candidates, stations can establish up-front limits on the amount of time that they sell to these candidates -setting limits on the number of spots per day or per daypart that they will sell in particular state and local races.

Next week in our series on the FCC's political broadcasting rules, we'll start with an article on the no censorship requirement, which will include an explanation of why we see so many ads making claims that we know are making claims that are simply not true.

David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters before the Federal Communications Commission, the courts and other government agencies for over 30 years. He regularly counsels clients on all aspects of broadcast law including the rules dealing with political broadcasting, multiple ownership, noncommercial broadcasting, technical operations and various aspects of content regulation.